Political and historical commentary for liberal conservatives and conservative liberals

Tuesday, January 15, 2013

Aaron Swartz and Manipulation of Mental Illness

The tech and legal communities this week are debating the suicide of 26-year old computer genius (and that is not too strong of a word by any means) Aaron Swartz, who was found to have hanged himself last Friday in his Brooklyn apartment. The Wall Street Journal gives background on legal troubles Swartz, who was believed to be suffering from clinical depression, was facing:

A few years ago, Mr. Swartz caused a stir by downloading some 20 million pages of court documents from the fee-charging Pacer website by exploiting free access given to libraries. No charges were ever brought, and no crime was committed, his lawyer said. But his efforts to make online content available for free ultimately brought him into conflict with federal prosecutors.
He was arrested in 2011 and charged in a scheme in which he allegedly logged into the computer network at the Massachusetts Institute of Technology and using it to download millions of academic journal articles from a database called JSTOR, owned by a nonprofit group.
According to the indictment, Mr. Swartz bought an Acer laptop in September 2010 and hooked it up the same day to the MIT network, registering as a guest under the name Gary Host and computer name "ghost laptop." Over the next few months, he allegedly used that computer and another to automatically download journal articles, playing cat and mouse with the university and JSTOR as they tried to shut him down.
Mr. Swartz's goal, friends said, wasn't to steal the material for personal gain, but to make it publicly available. On Wednesday, after a 10-month trial program, JSTOR opened its archives to free reading by the public. "We are deeply saddened to hear the news about Aaron Swartz," JSTOR said on its home page Saturday. The organization said it had told prosecutors that it wasn't interested in pursuing charges against Mr. Swartz.
The trial was set to begin April 1. Mr. Swartz faced charges of wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer. He faced as many as 35 years in prison, in addition to up to $1 million in fines.
In a superseding indictment handed up in September, prosecutors expanded the original charges to include 13 criminal counts that could have carried an even lengthier prison sentence.The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

The big question seems to concern proportionality and particularly overcharging, which many see in the zeal of the US Attorney's office in pursuing Swartz. Swartz's parents released a statement that read in part:

Aaron's death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death. The US Attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community's most cherished principles.

My condolences to them. Their grief must be unimaginable. One of Swartz's friends, Harvard Law Professor Larry Lessig, in a piece titled "Prosecutor as Bully," made similar comments:

First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

(emphasis in original)

Internet "hactivist" Aaron Swartz. Did prosecutors try to use his mental illness to get him to agree to a plea deal?

Some thoughts for consumption:

1. Prosecutors overcharge all the time, just as civil plaintiffs toss in every claim they can all the time. The idea with civil plaintiffs is to use the claims to get a settlement. The idea with prosecutors is to use the charges to get a plea deal. Nothing wrong with it ethically.2. I might be among the few outside the academic community who uses JSTOR. I have used its academic journal articles to research my piece on the Battle of Adrianople as a well as Rising Sun, Falling Skies. The way JSTOR works is like this: academic institutions usually have accounts, for which they pay, but which gives all their students, faculty and staff unlimited access. If you're not with an academic institution, you can buy individual articles a la carte for $10-$20 apiece -- usually. Some articles were reserved specifically for use by academic institutions and were not accessible to the general public, the reasons for which I never understood. But the a la carte fees never seemed particularly egregious and I gladly paid them for some very good studies on late Roman history and British Singapore policy.3. Larry Lessig says "[A]nyone who says that there is money to be made in a stash ofACADEMIC ARTICLESis either an idiot or a liar." True, but you can see the problem here. It is not clear how many articles Swartz downloaded; I've seen estimates from 2 million to 4 million. At $10 an article, that is potentially $20 million to $40 million. That's not chump change. Swartz would not be making that money himself from downloading the articles, but he would be denying that money -- any of that money, all of that money -- to JSTOR, a non profit, without whom the articles would be available only to a select few.4. Swartz had done something like this before, when he conducted a mass download of documents from the federal courts' PACER database of court filings in an attempt to make them freely available. Then again, those were all public records, for which PACER charges 8 cents per page, which seems rather high for public documents. No charges were brought.5. Internet security expert Alex Stamos, who was to be a witness for Swartz, found it hard to believe that someone could be considered to have "hacked" into a network with so little security, a network that was purposefully left open as MIT's was. Bottom line:

Aaron Swartz was not the super hacker breathlessly described in the
Government’s indictment and forensic reports, and his actions did not pose a
real danger to JSTOR, MIT or the public. He was an intelligent young man who
found a loophole that would allow him to download a lot of documents quickly.
This loophole was created intentionally by MIT and JSTOR, and was codified
contractually in the piles of paperwork turned over during discovery.

What sticks out for me in this case is not Swartz's suicide, for that is merely the symptom of a larger, far more troubling aspect of this case: Swartz's clinical depression.Last week, a friend of mine and I were discussing mental health care and eventually turned to the issues of pop singer Britney Spears. Spears famously went through a slow-motion "meltdown" in 2007, culminating on January 3, 2008, when she was forcibly removed from her home and taken to Cedars-Sinai Medical Center under an involuntary psychiatric hold, which means she believed to be an imminent threat to herself or others, including her children. She was photographed going into and inside the ambulance, apparently not completely dressed, in physical restraints, smiling in one photo but in the others showing absolute agony -- delirium, screaming, crying, tugging at the restraints, threatening suicide. Shortly thereafter, custody of her children was placed with their father Kevin Federline, and Britney's own father had her placed under a conservatorship, under which she remains to this day. The nature of Spears' mental illness(es) has never been publicly revealed.

Pop singer Britney Spears under examination by EMTs as she is being loaded into an ambulance on January 3, 2008, for an involuntary psychiatric hold. During this trip, Spears was said to have screamed, cried, and threatened suicide; her smile here has never been explained. Shortly after this incident Spears was placed under the conservatorship of her father, under which she remains. (Blowup of Photo from People magazine.)

It is hard for many people to believe someone as popular and worth as much as Britney Spears is, basically, a dependent of her father. Harder still is getting them to understand why. Some have theorized that the mental health issues tormenting Spears may be severe clinical depression, severe bipolar disorder, borderline personality disorder, or a toxic combination thereof. When I mentioned to my friend the possibility of Spears having clinical depression, with which I have considerable experience, she responded, "She shouldn't be depressed. She has all that money and all that fame."

None of which are guaranteed to get you out of the hell that is mental illness. My friend didn't understand; it is extremely difficult to explain clinical depression to someone who has no experience with it.

I've always liked Britney Spears, especially her early hits. My heart goes out to her. I hope she can conquer the demons that have tormented her so she can find lasting happiness and peace.

The subject of Spears came up during a discussion of mental health care because of rumors surrounding what turned out to be her imminent departure from The X-Factor. There has been considerable buzz in Hollywood that producer Simon Cowell hired Spears because he wanted "Crazy Britney," which could have translated into a higher rating for the show. But with Spears on apparently heavy medication, in therapy, and trying to be on her best behavior, he got "Boring Britney." Worse, there has been talk that someone high up in The X-Factor was actively trying to get Spears to dump her protective team and stop taking her medication.

In other words, if you believe the rumor, some ruthless, unscrupulous individual was trying to use Spears' mental illness against her, for their own gain.

What does this have to do with Aaron Swartz? Based on his own statement, Swartz was widely believed to have a mental illness, in his case clinical depression, about which prosecutors knew. Law enforcement has long used psychological tricks to get suspects to confess to crimes or agree to plea deals; a felony conviction and jail time usually counts as a significant scalp to a prosecutor. Most such tricks pose little in the way of ethical or moral issues. Some, though, are very questionable. It is not unknown for a prosecutor to drag a case out so the defendant exhausts his financial resources -- remember, criminal defense attorneys cannot be paid on contingency -- so he faces either pleading guilty or bankruptcy. That by itself is extremely stressful. I have witnessed the use of such tactics and their effect on the defendant firsthand. Swartz's statements indicate he was indeed about to run out of money to pay his lawyers. Let's go back to Larry Lessig:

[Swartz] is gone today, driven to the edge by what a decent society would only call
bullying. I get wrong. But I also get proportionality. And if you don’t get
both, you don’t deserve to have the power of the United States government behind
you.For remember, we live in a world where the architects of the
financial crisis regularly dine at the White House — and where even those
brought to “justice” never even have to admit any wrongdoing, let alone be
labeled “felons.” In that world, the question this government needs to answer is
why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18
months of negotiations, that was what he was not willing to accept, and so that
was the reason he was facing a million dollar trial in April — his wealth bled
dry, yet unable to appeal openly to us for the financial help he needed to fund
his defense, at least without risking the ire of a district court judge. And so
as wrong and misguided and fucking sad as this is, I get how the prospect of
this fight, defenseless, made it make sense to this brilliant but troubled boy
to end it.Fifty
years in jail, charges our government. Somehow, we need to get beyond the
“I’m right so I’m right to nuke you” ethics that dominates our time.

Stamos:

I know a criminal hack when I see it, and Aaron’s
downloading of journal articles from an unlocked closet is not an offense worth 35
years in jail.

[…]

If I had taken the stand as planned and had been asked by
the prosecutor whether Aaron’s actions were “wrong”, I would probably have
replied that what Aaron did would better be described as “inconsiderate”. In
the same way it is inconsiderate to write a check at the supermarket while a
dozen people queue up behind you or to check out every book at the library
needed for a History 101 paper. It is inconsiderate to download lots of files
on shared wifi or to spider Wikipedia too quickly, but none of these actions
should lead to a young person being hounded for years and haunted by the
possibility of a 35 year sentence.

[…] Aaron’s death demands a great deal of soul searching by
the US Attorney who
decided to massively overcharge this young man and the MIT administrators who decided to
involve Federal law enforcement.

I cannot speak as to all of the problems that contributed to
Aaron’s death, but I do strongly believe that he did not deserve the treatment
he received while he was alive.

Then there is the interview of Swartz's attorney by Patrick Frey, himself a distinguished Los Angeles County Deputy District Attorney:

Swartz’s lawyer, Elliot R.
Peters of Keker and Van Nest LLP, echoed these sentiments to me today in an
interview. Peters refused to speculate about why Swartz committed suicide. He
described Swartz as a “very sensitive and very smart person” who had been “very
scared” by the Government prosecution. Peters told me that, in his opinion, the
Government had been “awfully unreasonable” in their approach to the case. He
said that they insisted that Swartz plead to all 13 felonies. They said that
even if Swartz pled guilty, they were going to seek a prison sentence. They told
Peters that if the case went to trial and Swartz were convicted, they would seek
a prison sentence of 7 to 8 years. They told Peters that they thought the judge
would impose that sentence. (Peters told me he didn’t agree; he thought the case
was defensible and that even if Swartz lost, Peters didn’t think the judge would
have sentenced him to custody time.)

My own experience with clinical depression suggests that when given the choice of believing one of multiple scenarios, someone who suffers from depression will usually believe in the worse- or worst-case scenario. The mere fear of it happening is just crushing; the belief in the inevitability of it devastating. Panic sets in. Hopelessness. You do anything you can to avoid that scenario, the fear becoming a sort of twisted motivation.

It seems likely that Swartz would have believed the federal prosecutors and their worst-case scenario more than he would have believed his own lawyer and his better-case scenario. Because that's what depression does. And in doing anything he could to avoid that scenario, Swartz took what seemed to him the only certain way out.

Did the prosecutors count on Swartz's depression? Did they think his depression would make him break and agree to the plea deal under such unreasonable terms, thus giving them the felony conviction and jail time they so craved? I am not saying they did; I am just asking the question. Based on my experience with both clinical depression and some unethical prosecutors who tarnish the vast, vast majority of good, conscientious prosecutors, it is plausible. I do not know how likely it is, but it is one potential explanation for the conduct of prosecutors in Swartz's case.

Did prosecutors try to use Aaron Swartz's depression against him for their own benefit?

1 comment:

Why does the "vast, vast majority of good, conscientious prosecutor" virtually never speak out against prosecutorial abuse? Prosecutors are lawyers, and therefore members of one of the notoriously unethical professions.

WE STAND WITH JON WATERS!

About Me

I'm a lawyer with a bachelor's degree in National Security Policy Studies from The Ohio State University and a proud alum of The Ohio State University Marching Band. I'm also an independent military historian and author specializing in World War II, ancient Rome, ancient Greece, the Middle Ages, the Renaissance and the Civil War. I spend most of my spare time dancing ballet (not very well). I live in Indianapolis, where I follow foreign affairs, defense policy, history, archaeology, sports (all Cleveland and Pittsburgh teams, Ohio State Buckeyes, San Diego Chargers and Los Angeles Lakers), dance, and Shakespeare.